Technology at Trial: Geek or Meek?

As a former Alabama trial and litigation attorney, Annie has a keen eye for expert evidentiary issues and a clear voice for practical
solutions. Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published
by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude. While in law school, she served as Vice President
of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team
…

Reprinted with permission.

IMS ExpertServices
periodically sends me e-mails that highlight recent key court cases that can significantly affect the effectiveness of expert testimony, both
for the plaintiff and for the defendant. You need only scan the headlines I post daily to know the importance of effective legal representation
when intellectual property (IP) is being contested.

This article by Annie Dike,
writing for IMS ExpertServices, discusses how the use of technology might positively or negatively affect the jury, depending on the
demographic represented. Her mention of the 'holey-shoed' lawyer trick, which I had not heard of, to appear humble and hopefully illicit the
sympathy of jurors, might be as ineffective with Millennial type panel members as would pulling out an old-fashioned easel and paper to
illustrate a concept. In a world of 3-D printed mock-ups of crime scene or patent infringement 'evidence,' legal teams must more than ever
carefully consider their audience's potential response to strategies. It wouldn't surprise me to learn that some law firms use a tag team
approach where granddad and junior share the courtroom floor with similar versions of the same pitch in order to effectively satisfy a jury
comprised of people representing multiple generations.

Technology at Trial: Geek or Meek?

You've likely heard the story ─ the footwear motion
heard round the world ─ where plaintiff's counsel filed an actual I-kid-you-not motion asking the judge to compel defense counsel to refrain
from wearing holey-soled shoes to trial. The claim was that defense counsel wore the shoes during all of his trials with the specific intent
to casually prop one sole up during sidebars to show the jury he was "humble and simple, without sophistication." With all the talk recently
about technology at trial ─ vivid, interactive evidence, trial apps for your iPad, and so on ─ it got us thinking about what kind of impression
all this glitz and glam really has on the jury.

We recently explored the power of 3D printed evidence.
It seems these days you can (pretty quickly, easily and affordably) "print" an exact, to-scale replica of virtually anything - tiny, minute
parts of complicated machinery, human body parts, scene reconstructions, you name it. Such evidence can be incredibly compelling. Ironically,
however, in that analysis we compared the first version of "3D evidence" to the shoebox dioramas we all remember making in school. While 3D
evidence is certainly intriguing and impressive, it makes us wonder whether it might be overkill. Is it possible, when juxtaposed with a holey-shoed
attorney, crumpled tie and hat in his humble hand, that a shoebox diorama might actually be the piece of evidence that wins the case, purely
because it's simpler? We are all sensitive to the appearance of having six pin-striped suits sitting at our table when the other guy comes in
with just his smile and a briefcase, but should we feel the same about technology? Can a fancy video animation come across as the sea of pin-striped
suits in your corner?

Or, has technology become so engrained in our everyday lives that jurors expect it? They carry and use a phone every day that is one thousand
times smarter and more efficient than the original IBM computer. Does the attorney who props an over-sized legal pad up on an easel and begins
writing on it with a fat Sharpie look like your grandpa who doesn't even know how to text? What were those special jumbo-dial phones that were
specially made for senior citizens? Ahhh, yes. The Jitterbug. It's tagline? "A
simple cell phone made for those of us that grew up when phones were connected by wires." When facing twelve twenty-something jurors, their
smart phones buzzing in their pockets, is that necessarily a good thing? Or might they be thinking you're packing a Jitterbug in your own wrinkled
suit pocket and might that affect their trust in you in trying to present a case in today's ever-changing, fast-paced iWorld? Is it still an
advantage to be seen as "humble and simple, without sophistication?"

That may be hard to answer and will admittedly depend on a number of factors ─ the most important of which is likely the relative age and
sophistication of your jury pool. But, whether to use technology at trial is not a decision you can make after the jury has been selected. You
have to go with your instinct at the outset. While cost is always an issue (some trial technology consultants can charge up to $250/hour to
sit every hour of trial with you just to handle those pesky rewind, replay issues), let's cast that factor aside for the moment simply for the
sake of debate. We're curious how you view technology at trial these days. Some find technology can be helpful and persuasive. Others find it
distracting and feel it interferes with their ability to connect with the jury. We always enjoy a good, healthy discourse. What's your stance?
When it comes to trial technology, are you geek or meek? --- Add comments

This article was originally published in BullsEye,
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